(A) Board of Adjustment established, (76-2-321 & 76-2-322, MCA). A board of adjustment (herein after referred as "the Board") is hereby established in accordance with M.C.A. §§ 76-2-321 through 76-2-328. The City Council shall appoint five members to the Board, each for a term of three years except that in the initial appointment, one member shall be appointed for a term of one year, two members for a term of two years, and two members for a term of three years. Members of the Board may be removed from office by the City Council for cause upon written charges and after public hearing. Vacancies on the Board shall be filled by resolution of the City Council for the unexpired term of the member affected.
(B) Powers of the Board of Adjustment, (76-2-323, MCA). The Board shall have the following powers:
(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto;
(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.
(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed, and substantial justice done.
(a) HARDSHIP refers to circumstances peculiar to the particular property. Financial or economic difficulties or consequences of actions by the property owner(s) are not HARDSHIPS for zoning purposes.
(4) In exercising the above-mentioned powers, such board may in conformity with the provisions of this part, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken.
(C) Proceedings of the Board of Adjustment.
(1) The Board shall select one of its members as Chairperson and shall adopt bydaws necessary to conduct its affairs in keeping with the provisions of this chapter. Meetings shall be held on the call of the chairperson and at such other times as the Board may determine. The Chairperson, or in his or her absence, the acting Chairperson, may administer oaths and compel the attendance of witnesses. Meetings shall be open to the public.
(2) The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official; to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance; or to effect any variation in such ordinance. (76-2-324, MCA).
(3) The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote indicating such fact, and shall keep records of its examinations and other official actions, and immediately filed in the office of the Board. The Board shall make its records and minutes available for public inspection. (76-2-325, MCA).
(D) Submission of variance requests.
(1) Any person may apply for a variance to the board of adjustment as provided by the-by-laws of the Board by filing a variance application with the City Zoning Administrator or an assigned designee.
(2) The application for variance must be complete, and specifically set forth the grounds for requesting the variance.
(3) When the Zoning Administrator deems the application is complete, the Board will be notified and shall then fix a reasonable time for the hearing on the variance request, publish notice of the hearing in a newspaper of general circulation twice, with at least 6 days separating each publication, and containing all information as required under 7-1-4127 (8)(a) through (d), MCA and notify, by mail or electronic mail, the person requesting the variance.
(E) Requirements governing granting of variances.
(1) To grant a variance, the Board must make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter, will not be injurious to the neighborhood, is the minimum variance that will make possible the reasonable use of the land, building or structure, and will not be detrimental to the public welfare.
(2) In addition, the Board must determine that:
(a) Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same district;
(b) Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;
(c) The special conditions and circumstances do not result from the action of the applicant; and
(d) Granting the requested variance will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same district.
(3) Neither the nonconforming use of neighboring lands, structures, or buildings in the same district, nor the permitted or nonconforming use of lands, structures or buildings in other districts are grounds for the issuance of a variance.
(F) Appeals to the Board of Adjustment, (76-2-326, MCA).
(1) The board of adjustment shall hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by any administrative official or body in the enforcement of this chapter
(2) Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. The appeal must be taken within a reasonable time, as determined in the board of adjustment by-laws, by filing the appeal with the Zoning Administrator or assigned designee The Notice of Appeal must specify the grounds of the appeal.
(3) The City Zoning Administrator or assigned designee shall in a timely manner, transmit to the board of adjustment the notice of appeal and all papers constituting the record upon which the action appealed was taken.
(4) An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal has been filed with the officer that by reason of facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property. In that case, proceedings may not be stayed except by a restraining order, which may be granted by the board of adjustment or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.
(5) The board of adjustment shall fix a reasonable time for a hearing of the appeal, give public notice as stated in (D)(3) of this chapter, and notify the provide notice to parties of interest, defined by the board as those living within 150 feet of the property in question, and decide the appeal within a reasonable time.
(6) At the hearing, any party may appear in person or be represented by agent or attorney.
(H) Appeals from Decisions of the Board of Adjustment to a Court of Record, (76-2- 327, MCA).
(Ord. 2007-03, passed 1-14-2008; Ord. 2022-02, passed 1-17-2023)